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Issue link: https://kentuckybenchandbar.epubxp.com/i/245872
eral purposes in the future. However, in Hollingsworth, the Court concluded that standing did not exist because proponents of a ballot initiative only represent generalized grievances shared by all taxpayers, and therefore, the injury-in-fact requirement necessary to confer Article III standing was not met. The Court reversed the Ninth Circuit Court of Appeals' decision because that court similarly lacked standing to hear the case, but the Court's opinion preserved the District Court's opinion rendering Proposition 8 invalid. The Hollingsworth ruling on standing resulted in the reversal of the Ninth Circuit Court of Appeals' opinion, leaving the District Court's determination that Proposition 8 was unconstitutional under the Due Process and Equal Protection Clauses intact. Though Proposition 8 was struck down, Hollingsworth presents no legallybinding precedent that will aid in striking down state-imposed discrimination related to marriage equality. How the Court's majority opinions will be construed and utilized in the future is anyone's guess, but one thing is certain: the majority in Windsor left powerful authority for individuals challenging same-sex marriage bans and is definitely a "win" in the battle for marriage equality. Contrary to the situation presented in Windsor, the state of California chose not to appeal the district court's ruling, and therefore, was not a party before the Ninth Circuit Court of Appeals or the U.S. Supreme Court. Had the state of California appealed both the district court and the Ninth Circuit's ruling (similar to how the Obama administration proceeded in Windsor), the Supreme Court likely would have been able to bypass the "generalized grievance" standing issue that was central to the majority's opinion. This in turn may have allowed the Court to reach the merits of state-imposed same-sex marriage bans; however, there would still be a question as to whether Article III standing would have existed in Hollingsworth (even if the State of California had appealed) since the state of California may not have suffered an injury-in-fact sufficient to meet Article III requirements.39 CONCLUSION Though the Supreme Court's opinions in Windsor and Hollingsworth revolved around the issue of marriage equality, the actual legal issues presented in those cases were very distinct, resulting in two very different conclusions. In Windsor, the Court found that Article III standing did exist because the United States had suffered a direct injury by being required to issue a refund to Edith Windsor. As a result, the Court was able to strike down Section 3 of the Defense of Marriage Act, allowing same-sex couples legally married under state law to be treated as married for fed- Jerrad Howard is a corporate associate in Dinsmore's Louisville Office, where he is responsible for providing advice to and representing public and private companies, public utilities, and financial institutions. Howard concentrates his practice on mergers and acquisitions, as well as commercial finance and regulatory compliance for financial institutions. Howard's experience includes representing clients in a variety of agency proceedings and transactions, including multiple acquisitions and divestitures; providing thorough compliance advice in heavily-regulated industries; developing and implementing comprehensive corporate policies and procedures; and drafting complex product and service agreements. He also has experience counseling clients in the high-tech industry, with particular emphasis in the area of data breaches. Prior to joining Dinsmore, Howard worked for Montague Law PLLC, a Lexington-based soft intellectual property and technology boutique law firm, and GoDaddy.com, the Scottsdale-based primary domain name registrar. 1 2 3 4 133 S. Ct. 2675 (2013). 1 U.S.C. § 7. 26 U.S.C. § 2056(a). In fact, one complication that arose during this case was related to the 28 U.S.C. § 530D notice the Attorney General of the United States sent to the Speaker of the House of Representatives stating that the Obama Administration would no longer defend the constitutionality of the Defense of Marriage Act. This notice was sent before any judicial adverse action was issued, making the scenario quite odd, and created a wrinkle, in some of the Justices' opinions, as to whether the United States could appeal the District Court's ruling. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 United States v. Windsor, 133 S. Ct. 2675, 269394 (2013). Id. Id. at 2693. Id. at 2689-90. Id. at 2691. The Court noted, however, that the states' ability to regulate domestic relations is limited, and any regulation of the institution of marriage must respect the constitutional rights of persons. Id. (citing Loving v. Virginia, 388 U.S. 1 (1967)). Id. at 2685 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-62 (1992)). Id. (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). Id. at 2868 (quoting Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 599 (2007) (plurality opinion)). As Justice Kagan pointed out during oral argument, "whether the Government is happy or sad to pay that $300,000, the Government is still paying the $300,000, which in the usual set of circumstances is the classic Article III injury." Transcript of Oral Argument, United States v. Windsor, at 14. 462 U.S. 919 (1983). In Chadha, the Executive had presented to the Court of Appeals that it believed the statute at issue was unconstitutional, but also indicated it would continue to abide by the statute. For purposes of Article III standing, the Court in Chadha stated that the phrase "case or controversy" requires that the Court's "decision will have real meaning." Id. at 939-40. 122 S. Ct. at 2687. Id. Id. at 2688. See id. at 2711 (Alito, J. dissenting). Id. at 2697 (Roberts, C.J. dissenting) ("The dominant theme of the majority opinion is that the Federal Government's intrusion into an area 'central to state domestic relations law applicable to its residents and citizens' is sufficiently 'unusual' to set off alarm bells. . . . [T]hat power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions.") Id. at 2698 (Scalia, J. dissenting). Id. at 2699. Id. at 2701 (emphasis in original deleted). What is interesting is that Justice Scalia seems to forget (or ignore) that a separate party, the BLAG, was allowed to intervene as a party of interest in the suit and was asking that the lower court's ruling be overturned. Id. at 2708. Id. Id. at 2714 (Alito, J. dissenting) (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). Id. at 2718. Id. at 2692. 133 S. Ct. 2652 (2013). In re Marriage Cases, 183 P. 3d 384 (Cal. 2008). Cal. Const. Art. I, § 7.5. Hollingsworth v. Perry, 133 S. Ct. at 2660. Perry v. Brown, 265 P. 3d 1002, 1007 (Cal. 2011). Hollingsworth, 133 S. Ct. at 2661 (citing Romer v. Evans, 517 U.S. 620 (1996)). The majority in Hollingsworth v. Perry was composed of Chief Justice Roberts and Justices Scalia, Ginsburg, Breyer, and Kagan. Id. at 2662 (quoting Lujan, 504 U.S. at 573-74). Karcher v. May, 484 U.S. 72 (1987). Hollingsworth, 133 S. Ct. at 2666. Id. at 2668 (Kennedy, J. dissenting). Id. at 2670. In Windsor, the United States government satisfied the injury-in-fact requirement necessary for Article III standing because the District Court's determination prevented the United States government from collecting the $363,053.00 estate tax due. In Hollingsworth, there was no similar economical injury-in-fact suffered by the State of California. B&B; • 1.14 7 torate."37 The dissent concluded that, since this is an issue of state law, the California Supreme Court has the last say on that matter, and the Supreme Court of the United States has no basis to set aside that determination of state law.38 Since the California Supreme Court had affirmatively stated that the proponents of Proposition 8 had authority to defend the constitutionality of the ballot initiative, Article III standing was met in the same manner it would have been had Californian officials chosen to defend Proposition 8.